SUPREME COURT OF MISSOURI

Transcription

1 In the SUPREME COURT OF MISSOURI En Banc May Session, 2004 Report of the Office of the Chief Disciplinary Counsel for the year 2003 together with the Financial Report of the Treasurer of the Advisory Committee Fund for 2003 MARIDEE F. EDWARDS Chief Disciplinary Counsel

2 IN THE SUPREME COURT OF MISSOURI EN BANC MAY SESSION, 2004 REPORT OF THE OFFICE OF CHIEF DISCIPLINARY COUNSEL FOR THE YEAR 2003 TOGETHER WITH THE FINANCIAL REPORT OF THE TREASURER OF THE ADVISORY COMMITTEE FUND FOR To the Honorable Judges of The Court: Comes now the Chief Disciplinary Counsel, and respectfully reports to the Court on matters concluded during calendar year 2003 or pending on December 31,

3 I. DISCIPLINARY ACTIONS BEFORE THE COURT In the calendar year 2003, the following disciplinary matters were before the Supreme Court NAME DISPOSITION BARIL, CHRISTIAN J. #48389 Suspended on 4/1/03 Carbondale, IL Rule 5.20 Information for Show Cause & Motion for Discipline filed on January 21, 2003, (Reciprocal-Illinois). Suspended from the practice of law on April 1, 2003, and no petition for reinstatement will be entertained by the Court prior to September 20, BROWN, JAMES HARVEY, JR. Disbarred on 6/17/03 #20729 Baton Rouge, LA Rule 5.21 Suspended from the practice of law on April 25, 2002 pending the final disposition of any disciplinary proceeding based upon such conviction or misconduct which resulted from said conviction. Motion for Final Discipline filed May 19, Disbarred by order of the Court on June 17, BROWN, ROGER G. #29055 Public Reprimand on 7/22/03 Jefferson City, MO Motion for Leave to File Information & Stipulation directly in Supreme Court and to submit without further process filed on July 8, Public Reprimand by order of the Court on July 22, BRATTEN, STEVEN J. #30110 Disbarred on 7/9/03 Jefferson City, MO Disbarment set aside 8/11/03 Information with Notice of Default filed on July 9, Default disbarment by order of the Court on July 9, Respondent s motion to set aside and vacate default disbarment order sustained and disbarment set aside on August 11, Respondent granted leave to file answer with Advisory Committee pursuant to Rule 5.13 on or before August 21,

4 NAME DISPOSITION BRYAN, DAVID M. #45688 Public Reprimand on 8/26/03 Kansas City, MO Rule 5.20 Information for Show Cause and Motion for Discipline filed on June 12, 2003, (Reciprocal-Kansas). Public Reprimand by order of the Court on August 26, CALTON, JAMES B. #39622 Public Reprimand on 4/22/03 Joplin, MO Joint Stipulation of Facts, Joint Proposed Conclusions of Law, Joint Recommendation filed in Supreme Court on March 24, Public Reprimand by order of the Court on April 22, CARP, STANFORD J. #33457 Default Disbarment on 8/20/03 St. Louis, MO Information with Notice of Default filed on August 20, Default disbarment by order of the Court on August 20, CATO, SARA #38358 St. Louis, MO Interim Suspension on 7/2/03 Surrender and disbarment on 1/30/04 Rule 5.24 Information for Interim Suspension filed on June 27, Suspended on July 2, 2003, pending final disposition of disciplinary proceedings. Trustee appointed to protect the interests of Respondent s clients. Respondent filed voluntary surrender for medical reasons in Supreme Court on November 20, 2003, and a Motion to Stay disciplinary proceedings. OCDC filed Opposition to Motion to Stay and on November 24, 2003, Petitioner s Motion for Stay was overruled and Petition for voluntary surrender was denied by the Supreme Court. Motion for reconsideration was filed by Respondent in Supreme Court on December 8, (The Court then ordered Petitioner s motion for reconsideration sustained and ordered that the surrender be accepted and Respondent was disbarred by order of the Court on January 30, 2004.) 3

5 NAME DISPOSITION CONCANNON, STEPHEN M. Suspended on 6/27/03 #48289 Suspension Stayed Placed on Columbia, MO Probation on 12/28/03 Rule 5.21 Information and Request for Show Cause filed in Supreme Court on May 21, Suspended pending the final disposition of any disciplinary proceeding based on conviction or misconduct which resulted in said conviction on June 27, Joint Motion to Dismiss Disciplinary Hearing Panel and to Submit Without Further Process and Joint Stipulation of Facts filed in Supreme Court on September 18, On October 16, 2003, Supreme Court ordered Respondent remain suspended until June 27, 2005 and that on December 28, 2003, suspension shall be stayed and Respondent placed on probation pursuant to Rule DARCE, CHAD H. #46884 Default Disbarment on 3/6/03 St. Louis, MO Information with Notice of Default filed on March 5, Default disbarment by order of the Court on March 6, DEVOTO, ROBERT L. #28229 St. Louis, MO Default Disbarment on 11/3/03 Disbarment Set Aside 11/21/03 Suspended on 1/27/04 Suspension Stayed-Placed on Probation on 1/27/04 Information with Notice of Default filed November 3, Respondent s motion to set aside order of disbarment sustained by Supreme Court on November 21, Respondent granted until December 15, 2003 to file an answer to the information with the Chair of the Advisory Committee. Suspended by order of the Court on January 27, 2004; suspension stayed pursuant to the terms of the Stipulation and Respondent placed on probation on January 27,

6 NAME DISPOSITION DONAHO, TIMOTHY #42881 Indefinite Suspension on 3/18/03 St. Louis, MO Default Disbarment on 11/19/03 Record filed on August 27, Argument heard November 20, Indefinite suspension with no reinstatement application for 12 months from March 18, Motion for Court to accept transcript as Stipulation of Concurrence, Recommendation of six months suspension to run consecutively to above suspension filed on July 17, Continued indefinite suspension ordered by Supreme Court on October 28, Information with Notice of Default filed on November 19, Default disbarment by order of the Court on November 19, DUNALEWICZ, MICHAEL B. Default Disbarment on 12/29/03 #50798 Overland Park, KS Information with Notice of Default filed on December 29, Default disbarment by order of the Court on December 29, FISHER, BRADLEY J. #24910 Default Disbarment on 11/13/03 Springfield, MO Disbarment Set Aside 12/9/03 Information with Notice of Default filed on November 13, Default disbarment by order of the Court on November 13, Motion to set aside default disbarment sustained by Court on December 9, Respondent granted until December 31, 2003 to file an answer with the Chair of the Advisory Committee. 5

7 NAME HYDER, GREGG T. #28914 Columbia, MO DISPOSITION Suspended on 10/28/03 Suspension Stayed/Probation on 10/28/03 Joint Motion for Leave to File Stipulation and to Submit without Further Process filed on October 2, Suspended by order of the Court on October 28, Suspension stayed pursuant to the terms of the Stipulation and Respondent placed on probation on October 28, JOHNSON, ANTHONY RAY #43958 Suspended on July 3, 2003 Granger, IA Rule Information to Show Cause with Motion for Discipline filed on May 23, 2003, (Reciprocal-Illinois). Suspended by order of the Court on July 3, 2003, and no application for reinstatement shall be entertained by the Court for a period of six months after March 19, 2003, and further, that no application for reinstatement shall be entertained prior to Respondent having made full restitution as required by the Illinois Supreme Court. JORDAN, ARTHUR D. #36044 Default Disbarment on 10/24/03 St. Louis, MO Disbarment Set Aside 11/25/03 Information with Notice of Default filed on October 24, Default disbarment by order of the Court on October 24, Motion to set aside default disbarment sustained by Court on November 25, Respondent granted until December 22, 2003 to file an answer to the Information with the Chair of the Advisory Committee KAZANAS, DANIEL J. #31056 Disbarred on 3/4/03 St. Louis, MO Rule 5.21 Information for Show Cause & Motion for Discipline filed on September 15, Suspended awaiting further order of the Court regarding further discipline on October 16, Opinion issued by Court on January 14, 2003, disbarring Respondent (effective March 4, 2003). 6

8 NAME DISPOSITION KELLUM, ARTHUR C. #43102 Default Disbarment on 9/23/03 St. Louis, MO Information with Notice of Default filed September 23, Default Disbarment by order of the Court on September 23, KLINGINSMITH, THOMAS E. #28276 Carthage, MO Suspended on 10/28/03 Suspension Stayed/Probation on 10/28/03 Joint Motion to Discharge Disciplinary Hearing Panel, Approve Settlement Agreement and Enter Order Consistent With Settlement Agreement filed on September 29, Suspended by order of the Court on October 28, Suspension stayed pursuant to the terms of the settlement of the parties and Respondent placed on probation on October 28, KOHN, MICHAEL E. #27006 Surrendered License St. Louis, MO Disbarred on June 9, 2003 Rule Information for Show Cause & Motion for Discipline filed on December 10, Surrendered license and disbarred by order of the Court on June 9, LANDMAN, NATHANIEL #38514 Suspended on July 1, 2003 St. Charles, MO Information, Stipulation, and Approval of Stipulation filed on May 16, Suspended from the practice of law and no application for reinstatement shall be entertained by the Court for a period of six months from July 1,

9 NAME DISPOSITION LOUIS, MICHAEL W. #36502 Disbarred on 8/29/03 Forrest City, AR Rule Motion for Discipline filed on August 21, Disbarred by order of the Court on August 29, MITCHELL, EUGENE #42104 Default Disbarment on 6/19/03 St. Louis, MO Information with Notice of Default filed on June 19, Default disbarment by order of the Court on June 19, MITCHELL, JOHN R. T. #33488 Surrendered License Sugar Creek, MO Disbarred on 5/14/03 Surrender of License & Motion to Waive Filing Fee filed on April 8, Surrendered license and disbarred by order of the Court on May 14, MORGANSTERN, RAMON J. #16706 St. Louis, MO Suspended on 6/3/03 Suspension Stayed/Probation on 6/3/03 Information, Stipulation & Recommended Discipline filed on May 22, Suspended by order of the Court on June 3, Suspension stayed pursuant to the terms of the Stipulation and Respondent placed on probation on June 3, NIEHOFF, TERENCE W. #36151 Public Reprimand on 7/1/03 St. Louis, MO Motion for Leave to File Information & Response directly with the Court filed on March 6, Public Reprimand by order of the Court on July 1,

10 NAME DISPOSITION RAY, ROBERT DAVID #29613 Public Reprimand on 5/27/03 West Plains, MO Joint Motion to file Information, Stipulation & Recommended Discipline filed on May 14, Public Reprimand by order of the Court on May 27, REESER, ROBERT B. #24042 Sedalia, MO Suspended by order 12/23/03 Suspension Stayed/Probation as of 10/31/04 Stipulation of Facts, Conclusions of Law & Recommendation of Disciplinary Hearing Panel and Disciplinary Hearing Panel Decision filed on November 25, Suspended on December 23, Respondent s license was suspended through October 31, Thereafter, until December 31, 2005, the suspension shall continue, but is stayed. Respondent is placed on probation for a period beginning December 23, 2003 and ending on December 31, REZA, MARK ERNEST #22533 Default Disbarment on 2/3/03 Kansas City, MO Information with Notice of Default filed on February 3, Default disbarment by order of the Court on February 3, RICHARDSON, GEORGE W. #32406 Surrendered License Lenexa, KS Disbarred on 2/13/03 Surrender of License & Motion to Waive Filing Fee filed on January 21, Surrendered license and disbarred by order of the Court on February 13, RICHEY, MICHAEL L. #24044 Dismissal on 6/27/03 Cape Girardeau, MO Rule 5.24 Information for Interim Suspension filed on June 11, Dismissed by order of the Court on June 27,

11 NAME ROBBINS, JOSEPH K. #35319 St. Louis, MO DISPOSITION Suspended on 4/29/03 Suspension Stayed/Probation on 4/29/03 Record filed on October 28, Indefinite Suspension by written opinion of the Court and no application for reinstatement shall be filed for six months from April 29, Discipline imposed was suspended and respondent placed on probation with conditions for a period of one year from April 29, SCHUETZ, JAMES A. #38567 St. Louis, MO Default Disbarment on 6/5/03 Disbarment Order Vacated by Court on 8/11/03 Information with Notice of Default filed on June 4, Default disbarment by order of the Court on June 5, Disbarment order vacated by Court August 11, 2003, and referred back to Advisory Committee. Respondent granted leave to file answer on or before August 31, SHEEHAN, CHARLES FINN Default Disbarment on 6/12/03 #33625 High Ridge, MO Information with Notice of Default filed on June 12, Default disbarment by order of the Court on June 12, SHIELDS, DEBRA J. #49618 Default Disbarment on 5/16/03 Independence, MO Information with Notice of Default filed on May 16, Default disbarment by order of the Court on May 16, SIMON, RICHARD M. #35751 Disbarred on 5/28/03 St. Louis, MO Rule 5.21 Motion for Discipline filed in Supreme Court on April 3, Disbarred by order of the Court on May 28,

12 NAME DISPOSITION SIPPLE, STANFORD L. #38590 Suspended on 7/22/03 Lincoln, NE Rule 5.20 Information to Show Cause and Motion for Discipline filed on June 10, 2003, (Reciprocal-Nebraska). Suspended from the practice of law and no petition for reinstatement will be entertained by the Court for a period of two years from July 22, STITES, MICHAEL TRENT #48863 Interim Suspension/Settlement Dexter, MO Agreement on Rule 5.24 or alternatively Rule 5.23(b) Information for Interim Suspension filed on March 12, Master appointed. Joint Motion to Discharge Master, Approve the Settlement Agreement and Appoint Trustee sustained by Court on May 27, SUNDBLAD, ROBERT A. #25068 Suspension on 1/28/03 Kansas City, MO Stipulation of Concurrence filed on November 26, Suspended and no petition for reinstatement shall be filed for a period of six months from January 28, 2003, and Respondent shall comply with the terms of the stipulation and Respondent s compliance with said prerequisites must meet approval of the Office of the Chief Disciplinary Counsel. THORNTON, DAVID L. #34731 Default Disbarment on 2/3/03 St. Louis, MO Information with Notice of Default filed on February 3, Default disbarment by order of the Court on February 3, TIMMERMAN, DAVID L. #22023 Disbarred on 1/28/03 Springfield, MO Record filed in Supreme Court on September 18, Arguments scheduled and continued. Motion to submit without further process granted December 30, Disbarred by order of the Court on January 28,

13 NAME DISPOSITION WALK, TIMOTHY J. #31146 Default Disbarment on 1/9/03 St. Louis, MO Information with Notice of Default filed on January 9, Default disbarment by order of the Court on January 9, WALTHER, MICHAEL C. #18618 Indefinite Suspension on 12/23/03 St. Louis, MO Rule 5.21 Information & Motion for Discipline filed in Supreme Court on November 13, Indefinite suspension with no application for reinstatement for eighteen months from December 23, WEBB, LONA L. #52519 Suspension on 11/24/03 Kansas City, MO Rule 5.20 Information & Motion for Discipline filed in Supreme Court on October 16, 2003, (Reciprocal-Oregon). Suspended from the practice of law and no petition for reinstatement shall be filed for a period of one year from November 24, WILES, STANLEY L. #21807 Kansas City, MO Suspension on 6/17/03 Suspension Stayed/Probation on 6/17/03 Rule 5.20 Information for Show Cause & Motion for Discipline filed on December 18, 2002, (Reciprocal-Kansas). Suspended indefinitely with leave to apply for reinstatement after six months; suspension stayed for one year and Respondent placed on probation pursuant to conditions by order of the Court on June 17,

14 NAME DISPOSITION WILLIAMS, BENJAMIN E., JR. Suspension on 5/27/03 #32271 St. Louis, MO Stipulation of Concurrence filed on December 12, Court ordered complete Record filed and briefing and argument. Matter ordered submitted on Informant s brief May 20, 2003, as Respondent failed to file brief. Suspended and no application for reinstatement shall be entertained by the Court for a period of three years from May 27, II. PENDING COURT MATTERS AS OF NAME DISPOSITION BANTE, SHARON M. #36964 Suspended on 1/27/04 DeSoto, MO Record filed on October 31, Informant s brief was filed November 26, Respondent did not file a brief. Pending before the Court on December 31, (Suspended from the practice of law and the Court shall entertain no application for reinstatement for a period of six months from January 27, 2004, with prerequisites for filing a reinstatement petition.) BROWN, JEFFREY L. #45073 Disbarred 5/25/04 Kansas City, MO Record filed on November 17, Argument scheduled April 7, Pending before the Court on December 31, (Disbarred on May 25, 2004.) 13

15 NAME DISPOSITION KOEHLER, RICHARD A. #25354 Stayed Suspension on 3/30/04 Butler, MO Motion for Leave to File Information & Stipulation Directly in Supreme Court & to Submit Without Process filed on August 21, Court ordered matter briefed and argued. Pending before the Court on December 31, (Suspension, suspension stayed and placed on probation on March 30, 2004, and ending on March 31, 2005, with conditions.) PORZENSKI, JOSEPH J. #42754 Pending 12/31/03 St. Charles, MO Motion to File Information & Stipulation Directly & to Submit Without Further Process filed December 30, Pending before the Court on December 31, (Proposed discipline rejected by the Supreme Court on January 27, 2004, and returned to Advisory Committee for hearing.) PYLE, THOMAS F. #32232 Pending 12/31/03 Stockton, MO Record filed on October 27, Informant s brief filed November 24, 2003 and Respondent s brief filed December 17, Pending before the Court on December 31, SAYRE, JEFFREY DON #39327 Disbarred 1/28/04 Milan, MO Voluntary Surrender of license filed in Supreme Court on December 9, Pending before the Court on December 31, 2003 (Surrender of license accepted by Court and attorney disbarred on January 28, 2004.) TAYLOR, JAMES EDWARD Disbarred 1/27/04 #25554 Windsor, MO Voluntary Surrender of license filed in Supreme Court on October 24, Pending before the Court on December 31, (Surrender of license accepted by Court and attorney disbarred on January 27, 2004.) 14

16 NAME DISPOSITION TAYLOR, SCOTT G. #41820 Disbarred on 1/12/04 Ozark, MO Voluntary Surrender of license filed in Supreme Court on November 25, Pending before the Court on December 31, (Surrender of license accepted by Court and attorney disbarred on January 12, 2004.) III. REINSTATEMENT PROCEEDINGS DISCIPLINARY/DISBARMENT & RULE 5.23 MATTERS At the beginning of the year, nine (9) Missouri lawyers who had previously been disciplined had applications for reinstatement pending for processing by the Chief Disciplinary Counsel. 1 During the year ten (10) additional applications for reinstatement were filed and referred to the Chief Disciplinary Counsel for processing. A total of nineteen (19) disciplinary reinstatement applications were handled by OCDC during the 2003 year. The status of those 19 applications is as follows: Reinstated 4 Denied 1 Dismissed 4 Pending with OCDC 10 A. Four Disciplined/Or Incapacitated Petitioners Were Reinstated By The Supreme Court 1) Timothy D. Tipton, Excelsior Springs, MO, Missouri Bar #34576, reinstated on January 24, Petitioner was indefinitely suspended with leave to apply for reinstatement in 90 days on October 23, ) Michael I. Lawrence, Jackson, MO, Missouri Bar #38863, reinstated on April 1, Petitioner was disbarred on January 24, One additional petition was mistakenly listed as a pending reinstatement matter in the 2002 annual report. 15

17 3) Elizabeth H. Christmas, St. Louis, MO, Missouri Bar #32657, reinstated on May 27, Petitioner was indefinitely suspended under Rule 5.23 on October 26, ) Philip R. Gibson, Kansas City, MO, Missouri Bar #28610, reinstated on May 27, Petitioner surrendered license and was disbarred on February 26, B. One Disciplined Petitioner Was Denied Reinstatement By The Supreme Court 1) Robert G. Costantinou, Missouri Bar #30476, denied reinstatement and request for hearing was overruled on April 1, Petitioner was indefinitely suspended on April 27, C. Four Petitions Were Dismissed By the Supreme Court 1) John K. Weilert, Missouri Bar #25431, withdrew reinstatement petition and petition dismissed on January 2, ) Marc J. Healey, Missouri Bar #39144, reinstatement petition dismissed on January 21, ) Stephen W. Taliaferro, Missouri Bar #40005, reinstatement petition dismissed on April 25, ) Valerian Clyde Cahill, Missouri Bar #31770, reinstatement petition dismissed without prejudice on June 24, NON-DISCIPLINARY REINSTATEMENTS The OCDC Jefferson City staff also handle investigations and reports to the Supreme Court on petitions for reinstatement by those attorneys suspended for non-payment of enrollment fees. The OCDC also processes applications of attorneys on inactive status requesting to be returned to active status. In 2003, the OCDC received six (6) petitions per Rule 6.01 and nine (9) petitions per Rule 6.06, for a total of fifteen (15) non-discipline reinstatement files. 16

18 A. Five Applicants Were Reinstated After Automatic Suspension for Nonpayment of Enrollment Fees, Rule 6.01(f) At the beginning of 2003, six (6) applications were pending before the Chief Disciplinary Counsel s office from the previous year for reinstatement based on nonpayment of enrollment fees for a period in excess of three years. Six (6) lawyers filed applications for reinstatement after automatic suspension under Rule 6.01(f) during the year 2003 and said applications were referred to the Chief Disciplinary Counsel s office. Recommendations were made and reinstatements granted on five (5) of those applications. One (1) application was denied; one (1) petitioner withdrew and the matter was dismissed; and five (5) applications were still pending investigation in the Chief Disciplinary Counsel s office at the end of B. Eleven Applicants Were Reinstated to Active Status, Rule 6.06 At the beginning of 2003, three (3) applications were pending before the Chief Disciplinary Counsel s office from the previous year by attorneys requesting a return to active status. During 2003, nine (9) lawyers who had previously requested inactive status filed applications for reinstatement under Rule 6.06 and these applications were referred to the Chief Disciplinary Counsel s office. Recommendations were made by OCDC and reinstatements granted on eleven (11) applications. One (1) application remained pending investigation in the Chief Disciplinary Counsel s office at the end of IV. COMPLAINTS RECEIVED AND ACTED UPON IN 2003 In 2003, a total of 2,529 letters of complaint were received by the Office of Chief Disciplinary Counsel regarding alleged misconduct of attorneys in the state of Missouri. Of the total complaint letters, 890 formal investigation files were opened and 176 were placed in the Informal Resolution Program, for a total of 1,066. The office took action on those complaint letters as follows: Of those 1,066 files: 558 Investigation files were sent to regions, and 332 Investigation files were assigned to the Office of Chief Disciplinary Counsel 17

19 176 Complaint files were placed in the Informal Resolution Program of OCDC Of the 1463 remaining complaints: 903 Investigations not opened 350 Insufficient information to proceed 92 Referred to Fee Dispute Committees 85 Referred to Complaint Resolution Committee 33 Placed in Inquiry status The office received and responded to nine hundred three (903) letters, where the office concluded that an investigation was not warranted or was not appropriate at that juncture. 2 In addition, thirty-three (33) files were placed in inquiry status for monitoring whether an investigation should be opened in the future. Of those matters in which the office determined not to open an investigation, the Chief Disciplinary Counsel received approximately two hundred forty (240) letters requesting a review of the staff decision not to investigate their initial complaint. These complainants were provided a further review and response regarding the decision not to investigate through our internal review process. In fiftythree (53) instances, the Chief Disciplinary Counsel determined to take further action on the matter by opening an investigation or gathering additional information in order to make a determination whether to open an investigation. ADVISORY COMMITTEE REVIEW During 2003, at the conclusion of an investigation when no probable cause was found, one hundred two (102) complaint files were sent to the Advisory Committee for review of the no probable cause finding made by the Office of Chief Disciplinary Counsel or a Regional Disciplinary Committee. The Advisory Committee upheld the closure on twenty-eight (28) of these review files and issued two (2) cautionary letters that were sent to lawyers at the conclusion of their review. The Advisory Committee assigned five (5) files for further investigation and sixty-seven (67) of the one hundred two (102) Advisory Committee review files requested in 2003 were pending with the Committee at the end of the year. 2 In certain instances, OCDC determines not to open a complaint until after litigation is completed. 18

20 A. Informal Resolutions of Complaints Without Opening Formal Investigation In August, 2001, the Office of Chief Disciplinary Counsel initiated a new program in an attempt to address a concern and suggestion made by the ABA team that made recommendations to the Supreme Court in February, 2001 regarding the Missouri attorney discipline system. One recommendation (Recommendation #4) was to implement a complaint hotline which would provide an 800-toll free number for complainants to report a complaint. The recommendation also addressed a concern that the system be more consumer friendly in assisting complainants with expressing their complaints, and to resolve matters where possible at the intake-screening stage. In response to that concern, the Informal Resolution Program was implemented and enjoyed great success in In 2002, the program was instituted as a permanent method of complaint resolution. In this program, intake counsel identifies appropriate cases which are then assigned to a paralegal with directions to contact the complainant, the respondent, or both to assist in resolving the complaint rather than proceeding with a formal investigation. This is most often in response to a complaint that the client has not had adequate communication from the lawyer or where the client is attempting to obtain file documents without success. It may also be used in a case where the complainant has trouble articulating the nature of the complaint, or seems confused about the lawyer s responsibilities or the legal process. The Office of Chief Disciplinary Counsel believes the program will continue to be very successful in reducing processing time as well as preserving the attorney/client relationship. In 2003, one hundred and seventy-six (176) complaints were handled through the Informal Resolution Program. This was a 25% increase from the previous year. Of those one hundred and seventy-six (176) complaints, one hundred and thirty-six (136) were resolved without resort to opening a disciplinary investigation, twenty-one (21) were unresolved and an investigation file was opened, fourteen (14) were closed, and five (5) were pending as of December 31, Processing time on these complaints averaged seventeen (17) days. B. Missouri Bar Complaint Resolution/Fee Disputes The Chief Disciplinary Counsel referred eighty-five (85) complaints to the Missouri Bar Complaint Resolution Program for resolution outside of 19

21 the disciplinary process in accordance with Rule The report of the Complaint Resolution Program on the results of their efforts to resolve those complaints is attached and made a part of this annual report. During the year, ninety-two (92) complainants were referred to Fee Dispute Committees. The Missouri Bar, Kansas City Metropolitan Bar Association and the Bar Association of Metropolitan St. Louis continued to provide assistance to the discipline process in the form of the fee dispute resolution programs. These programs are valuable to the lawyers of the state and legal consumers by providing a forum for complaints which are primarily feeoriented, to be addressed through non-disciplinary means. The Regional Disciplinary Committees, the Office of Chief Disciplinary Counsel and the Advisory Committee are grateful to the bar associations for their cooperation and assistance in the Fee Dispute and Complaint Resolution programs. V. UNAUTHORIZED PRACTICE OF LAW The Office of Chief Disciplinary Counsel opened complaint files on approximately eighty-one (81) individuals and organizations alleged to have engaged in the unlawful practice of law. In some instances, the file included multiple complaints against the individual or entity. Many of these cases were referred to local prosecuting attorneys or to the Consumer Protection Division of the Missouri Attorney General s office. Others were resolved through communication with the company or individual. In 2003, the office devoted more attention to investigating unauthorized practice of law complaints. However, the office remained understaffed to handle the volume of complaints in this area and was forced to devote its limited resources to conducting in-depth investigations only when there appeared to be widespread consumer fraud occurring. After the office conducted in-depth investigations of complaints, the office on appropriate matters referred the materials to law enforcement for criminal prosecution as OCDC is only authorized to seek a civil injunction against a party for engaging in the unauthorized practice of law. 20

22 VI. PRESENTATIONS BY OCDC STAFF During 2003, OCDC staff gave presentations at 43 Continuing Legal Education seminars and other programs and organizations, including: 15- Hour Review of the Law, UMKC; Annual Government Practice Institute; Department of Social Services; Joplin Bar Association; Kansas City Bar Association; Labor & Employment Law Section; Missouri Bar; Missouri Court of Appeals, Eastern District; MOLAP; OCDC annual training; Paralegal Associations; Regional Disciplinary Committees; Sheriff s Departments; Solo/Small Firm Conference; Municipal Courts; University of Kansas Law School; US Bankruptcy Court 4 th Annual Open House; US Trustees Office; and William Woods University. VII. SIGNIFICANT ACTIVITIES IN 2003 Annual Training of Regional Disciplinary Committees and Special Representatives. The disciplinary system in Missouri utilizes volunteers in the two large metropolitan areas to investigate cases. The remainder of the cases from other parts of the state are investigated by the OCDC staff in Jefferson City. In 2003, there were sixty-eight (68) active volunteers acting in the capacity of Regional Disciplinary Committee members in the Kansas City and St. Louis areas. Fifty (50) of those members were lawyers and eighteen (18) were non-lawyers. The committees are divided into ten (10) divisions three in Kansas City, three in St. Louis City and four in St. Louis County. The committees are assisted by attorneys, (Special Representatives of OCDC), who are paid on an annual basis by the OCDC to help the committees on a part-time basis. The eleven (11) Special Representatives are also otherwise employed in the practice of law. These attorneys also act as trial counsel at disciplinary hearings if formal charges are filed, once they are so designated by the Chief Disciplinary Counsel. On November 7, 2003, a full day training session conducted by OCDC was held in Kansas City for representatives from the ten (10) divisions of the active Regional Disciplinary committees from across the state. This was the second annual training session. Eight (8) of the eleven (11) Special Representatives who serve the committees were in attendance, and six (6) lay committee members, and nine (9) lawyer committee members, along with seven (7) OCDC staff. At this session, participants were given substantive training materials relating to various policies and practices in the system. The Chairman of the Advisory Committee attended 21

23 the session and addressed the group on the general structure of the discipline system. Supreme Court Judge Laura Denvir Stith addressed the group during the luncheon portion of the meeting. Various Special Representatives, staff attorneys and committee members presented portions of the training. Lawyer participants received continuing legal education credit for their participation. Other Training Sessions: In 2003, OCDC attorney staff participated in training by attending the National Organization of Bar Counsel conferences and the ABA Professional Responsibility Conference. Two Special Representatives also participated in some of these sessions. OCDC became accredited as an MCLE provider in We hosted six CLE presentations. OCDC presented CLE presentations on current issues in the disciplinary system at luncheons honoring the Regional Disciplinary Committee members in Kansas City and St. Louis. OCDC coordinated with the United States Bankruptcy Trustee s Office to conduct reciprocal training programs. Attorneys from the Trustee s office presented basic bankruptcy training to OCDC staff in Jefferson City and to Special Representatives and Regional Disciplinary Committee members in the St. Louis area. An OCDC staff attorney provided training sessions to the St. Louis and Kansas City Bankruptcy Trustee s office staff on the provisions of the Rules of Professional Conduct applicable to bankruptcy. A Paralegal-Investigator in the OCDC attended a specialized training conference on financial records examination and analysis hosted by the National White Collar Crime Center of which our office recently became an associate member. This training was utilized frequently throughout the course of the year for the analysis of trust accounts. In an effort to expand our investigative resources and establish networking, this employee initiated an internet network of investigators from disciplinary offices throughout the United States and Canada. This network has grown to include almost 100 investigators from more than 30 states and Canada. The Office of Attorney Regulation in Colorado will be hosting the first annual conference for this group of investigators in October of Currently the NOBC has given preliminary indications that it will be adopting the group members into their organization through associate memberships. 22

24 Two OCDC staff attended training in the new rules regarding Notary Publics in Missouri. The Chief Disciplinary Counsel attended training in accounting and financial statements and current management issues in employment law. Paralegals in the office attended and presented training through the Missouri Paralegal Association. Changes in Procedural Rules: Probation and Diversion - In 2002 the Missouri Supreme Court adopted new rules authorizing diversion and probation programs, effective as of January 1, During the calendar year 2003 the OCDC commenced its diversion program and, approximately mid-year, began monitoring cases in which the Supreme Court issued orders of probation. In 2003 the OCDC monitored 14 diversion agreements. In 2003 the OCDC monitored 8 probation orders. Investigation & Hearing procedures - In 2003 the Supreme Court issued two orders making procedural changes that became effective as of January 1, Rule 5.13 was amended to delete the requirement that a respondent make a separate request for a hearing in addition to filing an Answer to an Information. Now filing an Answer in and of itself is deemed a request for hearing. Rule 5.09 was amended to delete language that all statements be transcribed if made in the course of investigation. New Staff: In 2002, the OCDC was authorized to hire two additional staff (an attorney and a paralegal-investigator). Given the uncertain state of long range planning at that point, staff was not hired in Instead, one temporary assistant was employed. Beginning in February, 2003 these two positions were filled with full-time permanent employees. Rules of Professional Conduct Ethics 2000 : In 1997 the American Bar Association developed a committee composed of lawyer representatives across the United States to review and 23

25 revise the ABA Model Rules of Professional Conduct. After a comprehensive proposal was prepared by this group, individual states formed committees to consider the application of the proposals for their state. Likewise, the Missouri Bar s committee on the Rules of Professional Conduct did an extensive review and offered comments to the Court with some additional revisions. Their report was received by OCDC in the fall of Staff at OCDC reviewed the proposals as well and offered comment in early 2004 to the Court and the Bar. This was a very timeconsuming review process by all involved and great effort was expended by the Bar and OCDC staff, the Legal Ethics Counsel and the Advisory Committee in 2003 on this important project. Other Committee work: OCDC staff participated in committee work on various committees and sub-committees of the Missouri Bar. The Chief Disciplinary Counsel and staff presented materials and spoke before the Missouri Bar Executive and Finance Committees in 2003 and early 2004 regarding information on its operations and request for a fee increase. A subcommittee on mandatory fee arbitration was attended by an OCDC staff attorney. One staff attorney is a member of the Professionalism Committee. The Alternative Billing Subcommittee was attended by another staff attorney. Our paralegals are active in the Missouri Paralegal Association and involved in the committee on regulating paralegals. Physical facilities: A portion of the basement storage area of the office in Jefferson City was remodeled to add two staff offices in An offsite storage space has been rented for use in storing some files due to the lack of space in the office. An adjoining parcel of land was purchased in This purchase had been pending and in negotiation for several years and was completed in December

26 VIII. STATUS OF THE ABA RECOMMENDATIONS In February 2001, the American Bar Association issued a Report on the Lawyer Regulation System in Missouri, at the request of the Supreme Court. The report contained 21 recommendations, many of which encompassed the themes of increased accessibility to the public, standardizing procedures through training and procedural rules, and providing alternatives to discipline in the form of probation or diversion programs. Other recommendations included removing the ethics opinion function from the Office of Chief Disciplinary Counsel, making disciplinary proceedings public at an earlier stage, increasing efficiency and access by revising the system and opening branch offices in the two major metropolitan areas, requiring disciplined attorneys to reimburse the agency for costs, and requiring lawyers to maintain client trust accounts at banks which would notify the OCDC of overdrafts. A report was submitted jointly by the Advisory Committee and the Office of Chief Disciplinary Counsel in February, 2002 to the Supreme Court on the ABA recommendations with comments from the Missouri Bar. Many actions were reflected in the annual report of 2002 which were in response to the ABA recommendations. During the year of 2003, the following actions were taken in response to the ABA s recommendations: 1. Legal Ethics Counsel, Sara Rittman, was appointed by the Chief Disciplinary Counsel, subject to Advisory Committee approval. Supreme Court Rules 5.07 and 5.30 were revised (effective January 1, 2003) to reflect the separation of the ethics advice from the disciplinary prosecution function under the auspices of the two distinct entities. (Recommendation 17) 2. The Second Annual Training was conducted for the volunteers and the Regional Disciplinary Committees and the Special Representatives (attorneys paid by OCDC to assist them) in November, (Recommendation 3) 3. Rules on probation and diversion were effective January 1, (Recommendation 20 & 21) 25

27 4. Rule 5.13 was amended to eliminate the need for a respondent attorney to request a hearing in addition to filing an answer. (Recommendation 9) 5. Continued public outreach efforts were made through press interviews and articles in legal and other publications to raise awareness of the functions of the office. Staff presentations to paralegal associations, colleges, and community groups such as Rotary Club were made. Yellow page enhanced listing in a mid- Missouri phone book was started. An informational pamphlet was distributed to courts throughout the state. (Recommendations 4 & 5) IX. PROGRESS ON BACKLOGGED INVESTIGATIONS A common problem for attorney disciplinary agencies across the country is processing cases in a timely manner. Similarly, it was noted in 2002 that the Missouri attorney discipline system had a significant backlog of investigation files, particularly in the category of investigation files pending over 360 days. A major focus of the Chief Disciplinary Counsel in 2003 was to find methods to reduce the number of investigation files pending in this category. The OCDC staff and the Regional Disciplinary Committees expended substantial efforts to reduce this backlog of cases and achieved great success. 3 On 1/1/03, the percentage of investigation files in the over 360 day category was 18% of the total investigation (normal) 4 files. As of 12/31/03, the percentage of investigation files in the over 360 day category had been reduced to 12% of the total investigation (normal) files. Likewise, the OCDC and the Regional Disciplinary Committees began efforts to meet the goal (effective in 2003) of completing most investigations within 180 days of opening the file. 3 The complaints disposed in 2003 under B. Region Reports appear to reflect this extraordinary effort in The OCDC case management system reports investigations in the categories of normal, held, and post AC review. Normal cases are active pending files, which have been processed without interruption. Held files are those temporarily placed on a non-active status because of pending litigation or other factors delaying the active pursuit of the investigation. Post AC files are those which were fully investigated, closed, and then returned for further investigation after review by the Advisory Committee because it was believed by the committee that the finding of no probable cause was not appropriate. 26

28 On 1/1/03, the percentage of investigation files pending over 180 days was 38% of the total investigation (normal) files. On 12/31/03, the percentage of investigation files pending over 180 days was 39% of the total investigation (normal) files. It is believed that no progress is reflected in this category because of the increased number of complaints processed in the system and the extraordinary emphasis in 2003 on reducing the backlog (over 360 day investigation files). X. DISCIPLINE ACTION INITIATED A. Admonitions The Office of Chief Disciplinary Counsel administered twenty-seven (27) written admonitions and the Regional Disciplinary Committees administered seventy-one (71) written admonitions which were accepted by members of the Missouri Bar. A total of ninety-eight (98) admonitions were administered. In addition, ninety (90) cautionary letters were sent to lawyers by OCDC and the committees at the conclusion of investigations. Cautionary letters are not disciplinary action, but merely a caution to the attorney that their conduct may have constituted a violation of the rules or could lead to a future finding of a violation of the rules. These letters are used to educate the attorney on ethical responsibilities in cases where the state of the law or the facts may not be clear, or to alert the attorney that a particular course of conduct, if unchecked for the future, may cause additional complaints to be filed. Region Complaints Pending 1/1/03 B. Region Reports Complaints Referred 2003 Complaints Disposed in 2003 IV X XI Admonitions 27

29 C. Filed Hearing Matters Filing Informations In 2003, due to the combined efforts of OCDC and the Regional Disciplinary Committees, Informations (the formal charging document before a disciplinary hearing panel) were filed on one hundred thirty-four (134) files. Files indicate individual complaints against attorneys. An Information against one attorney may include multiple files. The number of Informations filed before the Advisory Committee was forty (40). Twenty-three (23) Informations representing one hundred five (105) complaint files were pending before the Advisory Committee and Disciplinary Hearing Panels at the beginning of Sixteen (16) Informations resulted in defaults by the respondent, with default Informations being filed directly in the Supreme Court. Hearings were completed before Disciplinary Hearing Panels on nine (9) attorneys involving twenty (20) files. D. Informant s Briefs, Replies & Oral Arguments Informant filed seven (7) briefs in There were two (2) Informant s reply briefs and two (2) oral arguments presented in During 2003: SUMMARY OF DISCIPLINE ACTIONS (24) Twenty-four lawyers were disbarred; and five (5) of those were set aside by the Court. (18) Eighteen lawyers were suspended; and (7) of those suspensions were stayed and attorneys placed on probation with conditions. (5) Five lawyers received public reprimands; (1) One matter for interim suspension, Rule 5.24, was dismissed; (98) Ninety-eight written admonitions were administered by the Regional Disciplinary Committees and the Office of Chief Disciplinary Counsel. 28

30 These figures include proceedings by all committees and the Office of Chief Disciplinary Counsel. In light of the disbarments and suspensions, one hundred twentyseven (127) other complaints about the disbarred and suspended attorneys were closed; and additional complaint files that were still in the process may have been closed due to disbarment or suspension of the attorneys. 29

31 Disbarments Suspensions

32 Reprimands Admonitions

33 Total Disciplinary Actions Total disciplinary actions (146) including admonitions and formal discipline matters. 32

34 The total number of complaints opened as investigations during 2003 was eight hundred ninety (890). The most common complaints and the fields of practice most likely to produce complaints are: NATURE OF VIOLATIONS * NO. Rule 1.4 (Communication) 317 Rule 1.3 (Diligence) 187 Rule 8.4(c) (Dishonesty, Fraud, Deceit, 90 Misrepresentation) Rule 1.15 (Safekeeping Property) 56 Rule 1.7 (Conflicts) 48 Rule 5.5 (UPL) 33 Rule 1.5 (Excessive Fees) 26 Rule 1.1 (Competence) 24 Rule 8.4(b) (Criminal Activity) 24 Rule 7.2 (Advertising) 24 Rule 1.16 (Improper Withdrawal) 22 Rule 5.3(b) (Supervisory Responsibility) 16 Rule 3.5(b) (Ex Parte Contacts) 10 Rule 5.20 (Reciprocal Discipline) 9 Rule 1.6 (Confidentiality) 8 Rule 3.4(a) (Obstruction/False Evidence) 5 Rule 3.3 (Truth to Tribunal) 5 Rule 4.1 (Truth to 3rd Persons) 2 Rule 3.6 (Trial Publicity) 1 Rule 8.4(g) (Bias & Prejudice) 1 * Many complaints included more than one allegation. Some complaints involved more than one area of law practice. 33

35 AREA OF PRACTICE * NO. Domestic 200 Criminal 126 Other 118 Torts 107 Bankruptcy/Receivership 74 Estate/Probate 48 Workers Compensation 47 Litigation 34 Real Property 30 Labor Law 22 Contracts 22 Traffic 20 Civil Rights 15 Administrative/Governmental 13 Collections 12 Guardianship 8 Immigration/Naturalization 6 Consumer Law 5 Landlord/Tenant 5 Corporate/Banking 4 Insurance 3 Commercial Law 1 Environmental 1 Securities 1 Taxation 1 Juvenile 1 * Many complaints included more than one allegation. Some complaints involved more than one area of law practice. Dated at the office of Chief Disciplinary Counsel at Jefferson City, Missouri this 16th day of July, Respectfully Submitted, MARIDEE F. EDWARDS Chief Disciplinary Counsel 34

36 2003 LEGAL ETHICS COUNSEL ANNUAL REPORT The position of Legal Ethics Counsel was created by the Supreme Court effective January 1, The physical office became operational in early January of Informal Advisory Opinions Pursuant to Rule 5.30(c), the Legal Ethics Counsel issues nonbinding informal advisory opinions. The Legal Ethics Counsel provided informal advisory opinions in response to 1547 oral contacts. Some of the contacts involved multiple separate questions and therefore multiple opinions. Opinions given in conjunction with informal contact at bar meetings and CLE programs are not included in this count. The Legal Ethics Counsel also provided 99 written informal advisory opinions. Of these, 26 were summarized and published with the approval of the Advisory Committee. CLE Presentations The Legal Ethics Counsel prepared and gave 26 CLE presentations for various groups, including: The Missouri Bar, Kansas City Metropolitan Bar Association, Lawyers Association of Kansas City, University of Missouri at Kansas City Law School, Springfield Metropolitan Bar Association, Boone County Bar Association, Child Support Enforcement Association, Public Defender System, Attorney General s Office. COUNSEL TO ADVISORY COMMITTEE Rule 5.07(b) provides that the Legal Ethics Counsel shall serve as staff to the Advisory Committee. Review summaries Pursuant to Rule 5.12, the Advisory Committee reviews investigation files if the OCDC or a Regional Disciplinary Committee finds no probable cause 35